Roundups Law and Policy

Weekly Legal Roundup: Federal Courts Continue To Split On Birth Control Benefit

Jessica Mason Pieklo

Another ruling in the more than forty legal challenges to the contraception mandate in Obamacare shows the fight is far from over.

A federal judge on Friday refused to grant an injunction for a Mennonite business owner who claimed complying with the birth control benefit in Obamacare violated his religious liberties and free speech rights. It’s the latest decision to come from the 43 lawsuits currently working their way through federal district and appellate courts.

The decision is one of the strongest yet to come out in opposition to the idea that secular for-profit companies with no formal ties to a church or other religious group may impose specific religious beliefs on their employees vis-a-vis refusing to comply with the birth control benefit.

Meanwhile, Hobby Lobby announced that it found a temporary work-around to complying with the benefit while its own legal challenge continues. Peter M. Dobelbower, general counsel for Hobby Lobby Stores, Inc. said in a statement released through the Becket Fund, the conservative legal group representing many of the challengers that “Hobby Lobby discovered a way to shift the plan year for its employee health insurance, thus postponing the effective date of the mandate for several months.”

It’s clear that challenging the requirement that employer-provided health care plans include coverage for  contraception at no additional co-pay is seen by the right as both a business opportunity and a means to re-litigate Obamacare. The question is not if the Supreme Court will weigh in, but how and when.

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Commentary Law and Policy

Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling

Bridgette Dunlap

Yes, the Zubik v. Burwell case challenged the Affordable Care Act's contraceptive coverage mandate. But that shouldn't stop you from getting your reproductive health needs met—without a co-payment.

In May, the Supreme Court issued a sort of non-decision in Zubik v. Burwell, the consolidated case challenging the Affordable Care Act’s mandate that employers provide contraceptive coverage. The ruling leaves some very important legal questions unanswered, but it is imperative that criticism of the Court for “punting” or leaving women in “limbo” not obscure the practical reality: that the vast majority of people with insurance are currently entitled to contraception without a co-payment—that includes people, for the most part, who work for religiously affiliated organizations.

Two years ago, hyperbole in response to the Court’s decision in Burwell v. Hobby Lobby—that, for example, the Court had ruled your boss can block your birth control—led too many people to believe the contraceptive coverage requirement was struck down. It wasn’t. The Zubik decision provides a good opportunity to make sure that is understood.

If people think they don’t have birth control coverage, they won’t use it. And if they don’t know what coverage is legally required, they won’t know when their plans are not in compliance with the law and overcharging them for contraceptives or other covered services, perhaps unintentionally. The point of the contraceptive coverage rule is to make it as easy as possible to access contraceptives—studies show seemingly small obstacles prevent consistent use of the most effective contraceptives. Eliminating financial barriers isn’t enough if informational ones undermine the goal.

The most important thing to know is that most health plans are currently required to cover reproductive health services without a co-payment, including:

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  • One version of every kind of FDA-approved contraception—that is, only the generic or the brand-name version of the contraceptive could be covered, but at least one must be. So you shouldn’t be paying a co-payment whether you use the pill, the patch, the shot, or want long-acting reversible contraception (LARC) like an IUD, which is more expensive, but most effective.
  • Screening for HIV and high-risk strains of HPV
  • An annual well-woman visit
  • Breastfeeding counseling and supplies like pumps

There are exceptions, but most plans should be covering these services without a co-payment. Don’t assume that because you work for Hobby Lobby or Notre Dame—or any other religiously affiliated employer—that you don’t currently have coverage.

The original contraceptive coverage rule had an “exemption” for church-type groups (on the somewhat dubious theory that such groups primarily employ individuals who would share their employers’ objection to contraception). When other kinds of organizations, which had religious affiliations but didn’t primarily employ individuals of that same religion, objected to providing contraceptive coverage, the Obama administration came up with a plan to accommodate them while still making sure women get contraceptive coverage.

This “accommodation” is a workaround that transfers the responsibility to provide contraceptive coverage from the employer to the insurance company. After the employer fills out a form noting it objects to providing contraception, the insurance company must reach out to the employee and provide separate coverage that the objecting organization doesn’t pay for or arrange.

This accommodation was originally available only to nonprofit organizations. But dozens of for-profits, like Hobby Lobby, sued under the Religious Freedom Restoration Act (RFRA)—arguing that their owners were religious people whose beliefs were also burdened by the company having to provide coverage.

The Hobby Lobby decision did not say your boss’s religious belief trumps your right to a quality health plan. What the Court did was point to the existence of the accommodation for nonprofits as proof that the government could achieve its goals of ensuring coverage of contraception through a workaround already in place to give greater protection to objectors. Basically, the Court told the government to give the for-profits the same treatment as the nonprofits.

The Hobby Lobby decision states explicitly that the effect of this on women should be “precisely zero.” The Obama administration subsequently amended the contraceptive regulations, making coverage available to employees of companies like Hobby Lobby available through the accommodation. Hobby Lobby added some headaches for administrators and patients, but it did not eliminate the contraceptive coverage rule.

Next, however, the nonprofits went on to argue to the Supreme Court and the public that the accommodation the Court had seemed to bless in Hobby Lobby also violated RFRA—because having to fill out a form, which notified the government that they objected to contraceptive coverage and identifying their insurers, would substantially burden their religious beliefs.

Following oral arguments in Zubik, the eight-member Supreme Court issued a highly unusual order: It asked the parties to respond to its proposed modification of the accommodation, in which the government would not require objecting nonprofits to self-certify that they oppose contraception nor to identify their insurers. The government would take an organization’s decision to contract for a health plan that does not cover contraception to be notice of a religious objection and go ahead with requiring the insurer to provide it instead.

The petitioners’ response to the Court’s proposed solution was “Yes, but…” They said the Court’s plan would be fine so long as the employee had to opt into the coverage, use a separate insurance card, and jump through various other hoops—defeating the goal of providing “seamless” contraceptive coverage through the accommodation.

When the Court issued its decision in Zubik, it ignored the “but.” It characterized the parties as being in agreement and sent the cases back to the lower courts to work out the compromise.

The Court told the government it could consider itself on notice of the petitioners’ objections and move forward with getting separate contraceptive coverage to the petitioners’ employees, through the accommodation process, but without the self-certification form. How the government will change the accommodation process, and whether it will satisfy the petitioners, are open questions. The case could end up back at the Supreme Court if the petitioners won’t compromise and one of the lower courts rules for them again. But for prospective patients, the main takeaway is that the Court ruled the government can move forward now with requiring petitioners’ insurers to provide the coverage that the petitioners won’t.

So—if your plan isn’t grandfathered, and you don’t work for a church or an organization that has sued the government, your insurance should be covering birth control without a co-payment. (If your plan is grandfathered and your employer makes a change to that plan, then those formerly grandfathered plans would be subject to the same contraceptive coverage requirements.) If you do work for one of the nonprofit petitioners, the government should be making contraceptive coverage available even before the litigation is resolved. And in some cases, employees of the petitioners already have coverage. Notre Dame, for example, initially accepted the accommodation before being pressured by off-campus contraception opponents to sue, so its insurer is currently providing Notre Dame students and employees coverage.

Don’t despair about the Supreme Court’s gutting access to contraception. Assume that you have coverage. The National Women’s Law Center has great resources here for finding out if your plan is required to cover contraception and how to address it with your insurance plan if it isn’t in compliance, and a hotline to call if you need help. The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.

News Law and Policy

Los Angeles Officials ‘Not Going to Wait’ to Enforce Regulation on Anti-Choice Pregnancy Centers

Nicole Knight Shine

Los Angeles City Councilwoman Nury Martinez told reporters that her office last year fielded complaints about two Los Angeles centers that told clients that abortion care wasn't an option. One client carried to full term as a result, Martinez said.

Los Angeles City Attorney Mike Feuer on Monday unveiled a campaign to crack down on anti-choice crisis pregnancy centers (CPCs) violating California’s five-month-old public notice law on abortion access.

CPCs across California have so far unsuccessfully sued to block a reproductive disclosure law, and Feuer on Monday acknowledged reports that some jurisdictions have chosen not to enforce the law while the five court challenges are pending. Feuer said his office last week sent notices to six Los Angeles-area pregnancy centers informing them of the consequences of violating the law, known as the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

“We’re not going to wait,” Feuer told those gathered for a press conference in his downtown Los Angeles office. “Here in Los Angeles we know that waiting for a day, a week, or a month to enforce this law threatens the health and safety of women.”

The law requires the state’s licensed CPCs to post a brief notice about the availability of birth control and abortion care, and for unlicensed centers to disclose that they’re not medical facilities. Violators face civil penalties of at least $500. Enforcement is left to the state attorney general, city attorneys, and county counsels.

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Feuer said his office would conduct investigations in tandem with the Los Angeles County Department of Consumer and Business Affairs, but declined to be more specific. He encouraged Angelenos to report violators to his office.

Between six and eight CPCs operate in the City of Los Angeles and around 25 are run in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Federal and independent investigations have caught CPC staff lying about the so-called risks of abortion care. Until recently, a person who Googled “abortion clinic” might be directed to a CPC. Reports of the centers’ deceptive tactics helped spur the passage of the FACT Act in October. The law went into effect January 1, 2016.

“Every day that a women fails to get full and complete information … is a day that a woman’s life can be endangered,” Feuer said.

Los Angeles City Councilwoman Nury Martinez told reporters Monday that her office last year fielded complaints about two Los Angeles centers that told clients that abortion care wasn’t an option. One client carried to full term as a result, Martinez said.

Feuer’s office sent notices to Avenues Pregnancy Clinic, Los Angeles Pregnancy Services, Claris Health, Pregnancy Counseling Center, Open Arms Pregnancy Clinic, and Harbor Pregnancy Help Center. Three of centers that Rewire contacted on Monday said they were unable to comment and referred a reporter to the Alliance Defending Freedom, an Arizona-based nonprofit that has spent millions in legal campaigns to criminalize abortion and deny rights to LGBTQ people.

The Alliance did not respond to a request for comment.

Tabitha Phillips, CEO of Claris Health, one of the six centers mentioned by Feuer’s office, said the facility offers information about abortion care and has complied with the law since it went into effect January 1.

An investigation last year into Los Angeles Pregnancy Services, one of the CPCs targeted by Feuer’s office, described how the facility tricked a women with a high-risk pregnancy into delivering her fifth child. Last month, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area pregnancy centers are defying the FACT Act.

When questioned about compliance with the law, Alliance Senior Counsel Matt Bowman told Plevin, “All I can confirm is that many of these centers have said, in their court papers, we cannot refer out women and their unborn children for the destruction of the child, paid for by the state of California.”

Officials from the faith-based centers claim in court filings that the FACT Act violates their freedom of speech and religion. Operators of CPCs have said they’d rather close than comply.

“It does go against what we’re all about,” Marie Leatherby, executive director of the Sacramento Life Center, told the Sacramento Bee when it reported in March that the center was flouting the law. “Our mission is about helping women carry their children to term.”

Gustavo Martinez, supervising deputy city attorney for Sacramento, told the Bee that the office is developing a procedure for implementing the law.
Amy Everitt, state director of NARAL Pro-Choice California, on Monday hailed Los Angeles city and county officials for taking a stand against “anti-choice bullies.”
“Other cities and counties should follow their lead and send a clear message that our commitment to women’s health won’t be compromised,” Everitt said.